What Is a Provisional Unlawful Presence Waiver?
Mistakes can happen even in situations as crucial as the immigration process. For example, you may have entered the U.S. unlawfully or overstayed your visa at some point.
What does that mean when you apply for a green card? As an undocumented immigrant, you may be required to leave the country before applying for permanent residency.
However, an unlawful presence provisional waiver makes it possible to remain in the U.S. during the green card application process.
Who Would Need a Provisional Unlawful Presence Waiver?
If you are found to have been unlawfully present in the country, you may be banned by the U.S. authorities from re-entering the U.S. for specific periods, depending on the length of your unlawful presence. In such a case, you are said to be “inadmissible.”
It is possible to be banned for three years, ten years, or for the remainder of your life based on the following:
- Three-Year Ban: You have accumulated less than a year but more than 180 days of unlawful presence during a single stay and try to enter the U.S. again within three years from the date of the last departure.
- Ten-Year Ban: You have accumulated over one year of unlawful presence within a single stay and try to enter the U.S. again within ten years from your last departure.
- Lifetime Ban: If you have accrued over one year of unlawful presence during one or more stays in the United States, and you attempt to enter the U.S. without being admitted or paroled, you will be deemed inadmissible for life.
Provisional unlawful presence waivers and calculation of unlawful periods can be complex issues. Kansas City Immigration Lawyers can assist.
What Is the Difference Between the 601 and 601A Unlawful Presence Waivers?
In certain circumstances, you may get a waiver that would allow you to re-enter the U.S. There are two avenues for this process based on whether the applicant is applying from outside or within the U.S.: Form I-601 and Form I-601A.
The most relevant difference between the two forms is the reason for inadmissibility.
- Form I-601A is specifically designed to deal with the three or ten-year ban. I
- Form I-601 deals with other grounds of inadmissibility, such as poverty, criminal history, health reasons, and lack of labor certification.
It is essential to follow the correct process for your particular circumstances.
The 601 Waiver Request
Form I-601 can be used to apply for a waiver if you are ineligible to adjust your status in the U.S. or to enter the United States as an immigrant for specific grounds of inadmissibility. This may also affect your ability to enter the U.S. under specific other visa categories.
The I-601 waiver is used by applicants applying from outside the U.S. Once granted, it waives the unlawful presence grounds of inadmissibility so that foreign nationals can successfully return to the United States as lawful permanent residents.
The 601A Waiver Request
The 601A waiver request is used by applicants who entered the U.S. illegally and have green card family members or immediate U.S. citizens. Immigrant visa applicants seeking a green card are required to depart from the United States and apply at a U.S. embassy or consulate as part of the immigrant visa process.
In addition, they are typically required to attend the immigrant visa interview abroad in their home country. The problem is that if they leave the U.S. to do so, they could fall foul of the three-year or ten-year ban on trying to re-enter the U.S.
Once the 601A waiver request is granted, applicants and their immediate relatives may re-enter the U.S. on immigrant visas without fear of being banned.
What Are the Requirements for an Unlawful Presence Waiver?
Both forms require evidence that their qualifying relative would suffer extreme hardship if they were to be banned from the United States.
What Is Extreme Hardship?
You are required to prove that your relative will suffer significantly from your departure to prove extreme hardship. The suffering should be more than everyday hardship.
Extreme hardship includes:
-
Financial hardship leading to extreme loss, such as a loss of the family home, loss of the cost of care for the family, loss of the family business, or a significant decline in the family living situation
-
Instances in which the qualifying relative requires special treatment for their mental or physical health
-
There would be the loss of an educational opportunity or the loss of necessary training
-
There is a threat of persecution or harm to the applicant if they return to their country of origin
-
Personal reasons like the age of the family members, the consequences of separating the family, and country of origin considerations
Your application should contain all information you believe is relevant to your case. A skilled Citizenship Lawyer can assist you in building a case that will give you an optimal chance for a successful provisional unlawful presence waiver.
How Long Does the Unlawful Presence Waiver Take to Process?
Covid 19 has lengthened the usually five to six-month process for the i-601a unlawful presence waiver to be referred to more than two years. This is due to a massive backlog of cases.
You can request an expedited process, provided you can prove more than extreme hardship. If you do not receive an expedition response within 15 days, your request for an expedition may have been denied.
What Are the Requirements for an Unlawful Presence Waiver?
You can find the unlawful presence waiver requirements in Form I-601A. The most important prerequisites include the following, all of which should be met. Applicant requirements include:
- Be 17 years old or older
- Be physically present in the U.S.
- Have a pending immigrant visa case
- Not be subject to any other grounds of inadmissibility
How Do You Get a Waiver of Unlawful Presence in the U.S.?
You should submit the I-601A with all the relevant supporting evidence and the filing fees. You can find the requirements for filing the provisional unlawful presence waiver application on the U.S.C.I.S. website.
How Can an Immigration Attorney Help?
Provisional unlawful presence waivers can be complex, and getting them wrong could have disastrous consequences. A skilled K1 visa lawyer could make all the difference. They could massage your application and representation to procure an optimal result based on the circumstances of your case.
Beware of immigration scams in which unqualified people unfamiliar with the nuances of immigration law claim to be professionals and dispense legal advice. Attorneys with KC Immigration Lawyers offer a full range of immigration services. Call today for a free case evaluation before proceeding with your application. It is generally safer and more efficient to prevent errors rather than to fix issues once there is a problem.
